In the aftermath of the financial crisis in 2008, Congress passed legislation requiring the largest banks to take a yearly stress test. The purpose is to determine whether important financial institutions have sufficient capital reserves to cope with various worst-case economic scenarios.
In politics, we lack the same kind of objective, widely accepted quantitative measures used in these banking simulations. But we can observe qualitatively how our system reacts to real-time political stress.
Whether due to his temperament or business experience, President Trump likes to make decisions unilaterally. He chafes under the tight constraints of our checks and balances and serves unwittingly as a foil to American government. Pre-Trump, political scientists could only speculate about the strength of our political system’s design. Now we have some evidence. The Trump presidency is America’s political stress test.
What have we learned so far? Overall, the U.S. system is generally holding up as designed, especially with respect to domestic politics. But there are a few worrying signs of weakness in our checks and balances system, particularly on the foreign policy front.
The Founding Fathers were concerned about the tyranny of unchecked executive power and pure democracy’s tendency to instability. President Trump combines both challenges in his uniquely disruptive leadership style. By means of bold executive actions and wide ambiguities in executive trade and treaty authority, Trump has forged ahead with tariffs and redefined our relationships with NATO, South Korea, Iran, and Russia. Through his mastery of social media, he has riled up racial, religious, and socioeconomic tensions and kept his party in line even as he radically departs from Republican, conservative orthodoxy. These kinds of unchecked actions and demagoguery are what American government was designed to minimize, if not prevent.
The checks and balances of the American system are abundantly layered. This institutional logic has frustrated President Trump in various ways as it did President Obama during his time in office. When the Democrats were in power, it was perfectly acceptable for the President to resort to executive actions to accomplish what could not be accomplished through legislative processes under divided government. But by expanding the scope and frequency of executive actions, Obama enabled President Trump’s mission to undo his predecessor’s legacy as quickly and thoroughly as possible.
Among the branches of the Federal government, the most reliable checks to date have emanated from the courts, the most unusual from individuals serving in the executive branch, and the least effective from the Republican-controlled Congress.
The courts have delayed or blocked some of the Trump Administration’s most controversial policies, such as its initial ban on refugees from seven Muslim countries, its effort to end the DACA program, and its attempt to overturn Obama-era rules that would limit methane emissions at oil and gas sites.
But the courts can really only ensure that the President adheres to approved processes like the Administrative Procedures Act or the language and principles of the Constitution. There is little that they can do with respect to the President’s power in foreign affairs unless the Congress asserts its authority more explicitly on matters such as tariff policy.
Other than the Senate’s recent 98-0 vote to reject Putin’s proposal to allow Russia to interrogate American diplomats and citizens in exchange for letting us question the Russians who purportedly hacked our last presidential election, Congress has not shown much willingness to stand up to the President. Rising levels of political polarization and fear of punishment by the party base have neutered Republicans in Congress. They would probably find widespread bipartisan support for reaffirming the American commitment to NATO or for curbing the President’s tariff authority, but neither seems likely to happen at the moment. If party control flips in either the House or the Senate in 2018, it will of course be a different story.
The most surprising checks on the President have come from inside the executive branch. These include staff efforts to manage the President (e.g. John Kelly), passive resistance from staff to presidential demands (e.g. Attorney General Sessions’s recusal from the Russia inquiry and the constant leaking inside the White House), and pushback from the FBI and national security agencies to Trump’s efforts to undermine their investigations. Many of the key people looking into Russian involvement in the 2016 presidential election are Republicans (e.g. James Comey, Robert Mueller, Rod Rosenstein, and the FISA judges who authorized the investigation of Carter Page). Their commitment to the rule of law and democratic values is the most encouraging takeaway from all that has happened to date.
The checks and balances on policy get stronger as you move down the chain of government to the state and local level. Whatever the wisdom or merits of sanctuary city policy and other forms of local “resistance,” they are a reminder that states have reserved powers. While the Federal government has grown to some degree over time in this realm, its powers are still limited in important ways.
The current stasis at the Federal level on critical domestic issues like immigration reform or health care does not mean that the political system is broken. Rather, it is simply working as designed. The assumption of the American design is that it would be a mistake to impose policy at the national level before we have a chance to work out the implications and kinks at the state and local levels, or before there is a consensus at the national level about the right thing to do. The verdict is out as to whether the Trump Administration will try to impose its will on the states with respect to marijuana regulation or how local officials handle the incarceration of refugees and undocumented immigrants. But if they try, it will not be easy for them.
Finally, there is the check of the people. The Founding Fathers were well aware of the public’s limitations. If you are citizen slacker or a true believer, you are more vulnerable than ever to manipulation and exaggeration. Lincoln’s aphorism about fooling the public has been sorely tested under this presidency. Fortunately, the electoral check on presidential action does not require that all of the people figure things out some of the time. Just enough of the people in November will do the trick.